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NY Counties Seek Ruling on Oneida Reservation—Again

Gale Courey Toensing

1/31/13

Madison and Oneida counties in New York have asked the U.S. Supreme Court to review the 2nd Circuit Court of Appeals ruling that the Oneida Indian Nation’s 300,000-acre historic reservation remains intact—a ruling the appeals court rendered in 2003 and affirmed in 2010 and 2011.

The counties’ petition is the latest thrust in a series of lawsuits involving tax and land-rights issues that goes back to the 1970s. In the current petition, the counties ask the Supreme Court to determine if the Oneida Nation’s 300,000-acre historic reservation was “disestablished” by the 1838 Treaty of Buffalo and by two provisions in the Supreme Court’s ruling in City of Sherrill v. Oneida Nation—“that the Nation cannot exercise sovereignty over lands it purchases in the ancient reservation area” and “that land in the ancient reservation area has not been treated as an Indian reservation by the federal, state or local governments for nearly two centuries.”

The Oneida Nation responded with a brief arguing that the petition should be denied because the issue is unique to the Oneida Nation, while the Supreme Court only reviews cases that apply widely. In addition, it argues that the case does not conflict with any Supreme Court precedent, is not an issue in which several circuit courts have rendered conflicting decisions, and is not an important issue of federal law that needs Supreme Court clarification, the Nation says.

The Supreme Court is expected to announce whether it will take up the case on February 19.

"The struggle to preserve an accurate portrayal of Oneida Nation history is at the core of everything we do,” said Ray Halbritter (Wolf Clan), Oneida Indian Nation Representative and CEO. “For decades Oneida and Madison counties have pursued desperate litigation over the existence of the Oneida reservation and every court that has ever considered this issue has ruled that the Oneida reservation was never disestablished. We hope that this latest attempt to undermine Oneida Nation sovereignty and revise the historical record will be denied by the Supreme Court. And we hope we can finally move beyond the conflicts of the past and chart a new, more productive path for the future that fully respects our collective history."

The counties have asked the Supreme Court to revisit a case from 2003 in which the 2nd Circuit Court of Appeals determined, among other things, that the Nation’s 300,000-acre reservation has never been disestablished. The appeals court said, “It is undisputed that the OIN is federally recognized and the Bureau of Indian Affairs exercises jurisdiction over, at a minimum a thirty-two acre parcel of land within Madison County, which formed part of the OIN’s historic reservation. This reservation has never been disestablished, and accordingly, the ‘trust relationship’ between the federal government and the Oneidas has never been terminated. Nor have the Oneidas ever voluntarily abandoned this trust relationship by ‘choosing to terminate tribal existence.’ Finally, the federal government never approved the alienation of the land at issue.” The appeals court adhered to its ruling in 2010 and again in 2011.

The Nation’s aboriginal and reservation lands have a long and well-documented history. Oneida allied with the colonies during the American Revolution, and after the war the new federal government confirmed the Nation’s possession of its six million acre aboriginal territory in the 1784 Treaty of Fort Stanwix. That treaty promised that the Oneidas “shall be secured in the possession of the lands on which they are settled.” But five years later, New York negotiated its own treaty with the Nation—the 1788 Treaty of Fort Schuyler—in which the Nation ceded almost all of its aboriginal lands, keeping only 300,000 acres “in perpetuity.” For ceding more than five million acres of their land, the Oneidas received $2,000 in cash, $2,000 in clothing and other goods, $1,000 in provisions, $500 to build grist and sawmills, and an annuity of $600.

The federal government reaffirmed the Oneidas’ possession of that 300,000-acre reservation in the 1789 Treaty of Harmar and the 1794 Treaty of Canandaigua. By then, the federal government had enacted and amended the Indian Trade and Nonintercourse Act, which prohibits the "purchase, grant, lease, or other conveyance of lands” without the approval of Congress. But over the next four-plus decades New York state continued to acquire Oneida land without federal approval. By the time the 1838 Treaty of Buffalo Creek was signed, the Oneidas possessed only 32 acres of the 300,000 acres acknowledged in the Canandaigua Treaty. The Treaty of Buffalo was a result of Andrew Jackson’s 1830 Removal Act—America’s legalization of ethnic cleansing that relocated Indigenous Peoples in the east to “Indian territory” west of the Mississippi to make room for the ever expanding white settler population. The Treaty of Buffalo covered land sales of the Haundenosaunee Confederacy—the Oneida, Seneca, Onondaga, Cayuga, Mohawk, and Tuscarora nations.

The counties claim in their petition to the Supreme Court that implementation of the Treaty of Buffalo Creek disestablished the Oneidas’ reservation: “[T]he Oneidas sold 80 percent of their remaining lands to New York state within five years of signing the Treaty. . . Except possibly for the thirty-two acres [that remained], there has been no Oneida reservation in New York and the area is and has been under non-Indian jurisdiction for nearly 200 years.”

The counties also argue that the 2003 appeals court decision was rendered without the “benefit” of the Supreme Court’s rulings in City of Sherrill v. Oneida Indian Nation, which they claim “irreconcilably conflict[s] with the court of appeals historical analysis and conclusion that an extant reservation exists.” They argue that the appeals court ruling “creates a legal fiction” of an intact reservation that the Nation is trying to use to get out of paying taxes, to have land taken into trust, to acquire land under the Federal Property and Administrative Services Act of 1949, which gives federally acknowledge Indian tribes the right of first refusal on surplus government property, and “to claim sovereignty over its ancient reservation lands” in disregard of the Sherrill ruling by having the U.S. Census Bureau re-map 450 square miles of land in Central New York as the legal boundary of an intact Oneida reservation.

The Nation counters that the 2nd Circuit has already rejected the argument that the Treaty of Buffalo disestablished the Oneida reservation. “It studied the extensive record … and held that the treaty language itself, as well as its well-documented negotiation history, confirmed that neither Congress nor the Oneidas intended the treaty to disestablish the Oneida reservation.” The Treaty says that the Oneidas “agree to remove to their new homes in the Indian territory, as soon as they can make satisfactory arrangements with the Governor of the State of New York for the purchase of their lands at Oneida.” The Oneidas’ removal, therefore, was conditional upon arranging the sale of their lands, but since those arrangements never took place the reservation was never disestablished, the Nation says.

Regarding the counties’ claim that the historic reservation has been disestablished because the Nation has not exercised sovereignty over land that “has not been treated as an Indian reservation … for 200 years,” the Nation responds that Sherrill adhered to precedent-setting law cases recognizing that sovereign tribal authority may be limited even on reservations. Sovereign tribal governments do not have jurisdiction over non-Indians who commit crimes on reservations, for example, or sovereign authority over non-Indian land on reservations.

As for the counties’ claim that the Sherrill determination that Oneida cannot assert sovereignty over lands it reacquires in fee means the historic reservation has been disestablished, the Nation points out that the high court states “explicitly” in Sherrill that it did not address the disestablishment question. Furthermore, Sherrill reiterates that “only Congress can divest a reservation of its lands and diminish its boundaries.” In addition, the Supreme Court again rejected the counties’ request to review the disestablishment claim only two years ago even when the Nation waived its sovereign immunity, the Nation points out.

Although the Nation’s historic reservation has fallen into non-Indian hands over the past 200 years, the Nation has re-acquired 17,370 acres of reservation land “in fee”—meaning it has purchased the land outright on the real estate market. The Interior Department announced in 2008 that it would take 13,000 of the 17,370 acres into trust. The counties and state sued Interior, claiming that the trust land would create a “checkerboard” of jurisdictions that would create difficulties for local and state governments. They also asserted that the 1934 Indian Reorganization Act, which authorizes the Interior Secretary to take land into trust for Indian tribes or individuals, doesn’t apply to the Oneidas since they declined to reorganize under its rules in 1936. That litigation is pending in federal court.

Regarding its trust land application, the Nation notes that the Supreme Court instructed the Nation to pursue trust status for the land it reacquires in fee. The Oneida Nation submitted its fee-to-trust application to the Interior Department a week after the March 29, 2005 Sherrill ruling. The Nation could not unilaterally assert tribal tax immunity to prevent a local government from assessing real property taxes on lands it re-acquired two hundred years after it had last possessed them, the Supreme Court said. The “proper avenue” for the Oneida Nation “to reestablish sovereign authority over territory last held by the Oneidas 200 years ago” is by a fee-to-trust application,” the Supreme Court said.

The counties hope a ruling that the reservation has been either “disestablished” or “diminished” will prevent the Interior Department from finalizing the trust land process and allow the state to collect taxes on the Oneida land. But even if the Supreme Court were to answer the question of the reservation’s status, that “will not even necessarily resolve whether the land at issue here is subject to taxation under state law,” the Nation says. The 2nd Circuit Court deferred the taxation question to the state courts. Three related cases pending in state court include a foreclosure case in Madison County against the Nation’s fee lands, and two cases in Madison and Oneida counties in which the Nation has challenged tax assessments, arguing that its land is immune from taxation under state statutes. Those cases are likely to be heard this year.

To the counties’ claim that the Nation seeks to “reestablish a vast Indian reservation …and tribal sovereignty over all of the historic reservation” in a “large swath” of Central New York that would lead to conflict between Indians and non-Indians, the Nation says, “They have the facts wrong.” Instead of identifying any dispute that depends on continued federal recognition of the Oneida reservation, the counties “focus most extensively on a census map that the federal government has withdrawn and which, even prior to its withdrawal, the government said had no legal effect.”

So far, Madison and Oneida counties have spent approximately $13 million of taxpayers’ money in fighting the Oneida Nation, according to Meghan Beakman, the Nation’s general counsel.

Madison County Attorney S. John Campanie , the lead attorney for the counties, did not return a call seeking comment on the Nation’s opposition brief.

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